Aerial view of Qualicum Beach

Todsen v Morse: A win for democratic expression

Aerial view of Qualicum Beach. The proposed development is located at the edge of the 200-acre forest depicted at bottom right. Photo credit: Shawn /Flickr, 2007, CC BY-SA 2.0.

In Todsen v. Morse, 2022 BCSC 1341, the British Columbia Supreme Court has affirmed that the Protection of Public Participation Act (PPPA) affords robust protection for citizens advocating for environmental conservation. Passed unanimously by the BC Legislature in 2019, this case was the first time the PPPA had been invoked in this context.

The decision arose out of an application by the defendants to dismiss 24 defamation claims made against them by the plaintiffs in a lawsuit filed in May 2021.

After a four-day oral hearing, the Honourable Justice Brongers granted the application. He held that the statements complained of were either not defamatory, lacked “substantial merit” or could be validly defended as truth or as fair comment. The decision is an important contribution to a growing body of PPPA caselaw that explains the role the PPPA plays in protecting democratic expression in British Columbia.

The case concerned public statements made by the Qualicum Nature Preservation Society (QNPS) and the QNPS’s president, Mr. Ezra Morse, opposing development within the Estate Residential Area in Qualicum Beach, B.C. The project proposed by the plaintiffs required an Official Community Plan (OCP) amendment and zoning upgrade to enable a higher density of housing in what is otherwise designated as “Estate Residential” land use under the OCP.

The Qualicum Nature Preservation Society and its president Ezra Morse (photo) are sued for statements they made in relation to a proposed development project in Qualicum Beach, B.C. Photo credit: Ezra Morse.

The Court held that the PPPA “provides for a specific pre-trial procedure designed to summarily dispose of certain kinds of civil claims that could silence political debate on issues of public interest. Such claims are colloquially known as “Strategic lawsuits against public participation”, or “SLAPPs”.

Justice Brongers granted the application to dismiss the lawsuit, concluding that “the Todsen’s claim [was] in the nature of a type of SLAPP proceeding that the Act prohibits”.

Tollefson Law were counsel for the defendant Ezra Morse and are regularly consulted by clients and other law firms in SLAPP cases.

In collaboration of Tollefson Law, CELL is an education partner in this case. Through this case, CELL students learned about litigation practice and procedure in the context of a chambers application before the B.C. Supreme Court. They learned how to prepare and conduct cross-examination of witnesses on their affidavits, including how to structure a cross-examination to gather evidence pertaining to the applicable legal framework. They also learned how to use evidence obtained through such cross-examinations in preparing written and oral submissions in chambers.

Aimee Huntington, who was a CELL student in the 2021 Fall cohort and had a chance to learn about litigation practice through this case, reflected on her experience:

It has been a fantastic opportunity and I can truly say that it has been a highlight of my legal education. Since I am nearing the end of my law school years, this is one of the experiences that I know I will try to carry forward the most. There is a uniqueness in public interest work that I think very few law students get to experience— this program provides such a rare insight into the importance of this work. The opportunity to meet and discuss some of these issues with the instructors, other lawyers they work alongside, as well as clients is so fantastic.

Commentary on his decision can be found in the The Narwhal, The Tyee, and The Vancouver Sun.

An overview of SLAPP law in Canada can be found on Tollefson Law’s website here: link.


Posted: August 31, 2022

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